Manafort judge emerges as skeptic of long mandatory minimum sentences

By JOSH GERSTEIN

07/06/2018 09:24 AM EDT

The judge overseeing former Trump campaign chairman Paul Manafort's looming trial on tax and bank fraud charges is known as a tough jurist, often snapping at attorneys for ignoring his directions and rebuking defendants he views as insufficiently contrite.

But, in recent years, U.S. District Judge T.S. Ellis has begun to direct his public ire at an unusual target for a Reagan-appointed judge: laws that impose lengthy mandatory minimum sentences judges have no authority to waive or reduce.

Ellis has complained directly to Congress about what he's called the "excessive" sentences required for some offenders. He's also publicly lamented the situation, as he did recently during a drug dealer's sentencing that took place in an Alexandria, Virginia courtroom packed with national media, high-powered prosecutors and others awaiting a key hearing in the case against Manafort.

"This situation presents me with something I have no discretion to change and the only thing I can do is express my displeasure," Ellis said last week as he sentenced Frederick Turner, 37, to a mandatory minimum of 40 years in prison for dealing methamphetamine. "I chafe a bit at that, but I follow the law. If I thought it was blatantly immoral, I'd have to resign. It's wrong, but not immoral."

Ellis told Turner's lawyer that any relief for his client lies with Congress. "I think you're knocking on the wrong door for a remedy. The remedy is across the river," the judge said.

However, in another case, the 78-year-old judge is going even further.

In April, confronted by a 28-year-old armed robbery convict facing a mandatory minimum 82-year sentence, Ellis' frustration grew so intense that he balked at imposing what he called a "very severe" sentence. Instead, the judge recruited a high-powered law firm to scour the law in search of some way to avoid imposing what is effectively a life sentence on Lamont Gaines, who was convicted of a string of robberies of 7-11 stores and a check-cashing business.

The judge appointed Daniel Suleiman, a former aide to Attorney General Eric Holder, to come up with any argument that might help Gaines win a more lenient sentence. Suleiman, a partner at Covington & Burling, set on one possibility: a Supreme Court ruling in April that invalidated a law very similar to the one requiring the lengthy sentence for Gaines.

In a brief filed last month, Suleiman argued that the April decision has "direct application" to Gaines' case and "would permit this Court not to sentence Gaines to 82 years."

Federal prosecutors rejected that argument last week, insisting that the 82-year sentence is still required in the case. Assistant U.S. Attorneys Alexander Blanchard and Rebeca Bellows filed a brief urging Ellis to consider Gaines "real-world conduct" and reminding the judge that the defendant "endangered...victims' lives and instilled them with the fear they would be physically harmed."

Ellis has yet to signal whether he'll buy into the new argument to cut down the potential sentence in Gaines' case.

Ellis' current preoccupation with federal sentencing laws is not that the mandatory minimums for specific crimes are too harsh, but that in cases involving multiple charges the result can be unjust, resulting in decades of extra incarceration for a defendant who chooses to go to trial rather than plead guilty.

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While prosecutors often settle for a guilty plea to a single serious charge, carrying, say, a 10-year minimum sentence, the government will pursue several such charges when a defendant goes to trial. Federal law typically requires that sentences for crimes involving use of a gun run consecutively, a phenomenon often referred to as "stacking."

At the sentencing last week, Ellis called the result in Turner's case "excessive in the current circumstances." The judge also noted that prosecutors' decisions about how to frame the indictment led to the outcome. "You don't have to pursue every charge," he said.

However, Ellis didn't really fault the prosecutors. He noted that because Turner decided to go to trial, they couldn't be sure he'd be convicted on all the counts, so it was logical to include several. The jury found him guilty on all of them, with two involving possession of a firearm while dealing drugs effectively extending his sentence by 30 years. Critics say the prospect of such sentences gives prosecutors extraordinary leverage and can induce defendants to plead guilty even in instances where they're not.

In 2015, Ellis wrote to Congress about the "stacking" practice, calling it "grossly excessive and unjust." He said the law was supposed to cover felons who re-offended after leaving prison, but is being applied to those "who never had the chance to learn a lesson from the sentence imposed for the first conviction."

While efforts have been underway in Congress for years to ratchet back some of the mandatory sentences, the Trump administration's policy on the issue has been confusing.

White House officials, including President Donald Trump's son-in-law and senior adviser Jared Kushner, have shown interest in criminal justice reform proposals. However, Attorney General Jeff Sessions sent a letter to the Senate in February slamming a bipartisan bill that would limit the application of mandatory minimum sentences, including by reining in "stacking" of charges. Sessions said the measure was ill-advised at a time when the U.S. is struggling with an epidemic of opioid abuse and deaths.

"Passing this legislation to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation's history would make it more difficult to achieve our goals and have potentially dire consequences," the attorney general wrote.

Back in 2015, though, Sessions said he believed changes to "stacking" were called for. "I think the stacking issue is a problem....I would support reform on the stacking provisions," the Alabama senator said at a Judiciary Committee session on a similar reform bill that never passed.

While Trump has campaigned publicly on a "law-and-order" message, earlier this month he commuted the sentence of Alice Johnson, a 63-year-old great-grandmother who had served 21 years of a life sentence for a non-violent drug conviction. Trump acted in her case after an in-person plea by reality TV star Kim Kardashian. White House officials have said he's considering other cases for possible clemency action.

Criminal justice reform advocates say Congress needs to step in and that laments like the one from Ellis last week underscore the urgency of the issue.